Tuesday, December 15, 2015
Over at NCR, Michael Sean Winters has a post about the latest case involving adjunct faculty unionization efforts at Catholic universities, this time at Loyola-Chicago (following on similar cases at Seattle University, St. Xavier in Chicago, Manhattan College, Duquesne, and others). Those schools (along with the Association of Catholic Colleges and Universities and the Association of Jesuit Colleges and Universities in amicus briefs) have been engaged in an argument with the National Labor Relations Board for the past few years about NLRB jurisdiction over adjunct faculty unions. I’ve written about the issue previously here at MOJ.
At the outset, I resist the characterization (though understand why it would be rhetorically effective, especially in a Catholic setting) to frame this issue as one of being “for” or “against” unions. Before this is a freewheeling debate about Catholic social teaching or the value of unions, NLRB jurisdiction over adjunct faculty collective bargaining at Catholic universities is a straightforward and narrow question of statutory interpretation. Absent clear congressional intent to place teachers at religious institutions under the jurisdiction of the National Labor Relations Act, the canon of constitutional avoidance requires that the statute be interpreted so as to avoid raising First Amendment problems. That is the unambiguous holding of the Supreme Court’s decision in NLRB v. Catholic Bishop in 1979 (and for reasons that Doug Laycock classically expressed here). Every subsequent decision in the circuit courts looking at NLRB jurisdiction over religiously affiliated universities—from then-Judge Breyer’s controlling opinion in Universidad Central de Bayanom v. NLRB, 793 F.2d 383 (1st Cir. 1986) (en banc) (Breyer, J., for half of an equally divided court), to the D.C. Circuit’s opinion in University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002)—agrees with that interpretation of the NLRA’s scope. The legal argument against NLRB jurisdiction over adjunct faculty unions at religiously affiliated schools (absent congressional amendment of the NLRA or a Supreme Court case revisiting Catholic Bishop) is about as clear as you can get.
But that hasn’t stopped the NLRB from engaging in more than 30 years’ worth of conceptual gymnastics to avoid the implications of those holdings (grounded in the Board’s non-acquiescence to circuit court precedents, see D.L. Baker, Inc., 351 NLRB 515, 529, fn. 42 (2007)). As I noted after the Board’s decision in the Pacific Lutheran case, the test now applied for withholding NLRB jurisdiction over faculty is whether the university “hold[s] out faculty as performing a specific religious function,” which requires, for example, findings about whether and which faculty engage in “religious indoctrination” (whatever that is) or whether the school has a commitment to academic freedom. (As an aside, I should clarify that this applies only to non tenure-track faculty, as tenure-track faculty are deemed “managerial employees” under the Supreme Court’s decision in NLRB v. Yeshiva University in 1980.) And, again, this means that the Board is exercising its judgment about the incompatibility of academic freedom with a religious mission or whether only faculty engaging in “religious indoctrination” are serving the mission of a school, both propositions that are widely rejected in American Catholic higher education. This inquiry, just as the earlier “substantially religious character” test, poses a serious risk of entanglement in the mission of religiously affiliated schools, a risk not posed by regulations about, say, asbestos or lead paint (which Winters cites for his argument).
A quick concluding point about how this comports with Catholic teaching on the rights of workers to organize. As argued in detail by Kathleen Brady in this article, there should be some hesitation before simply assimilating Catholic social teaching on unions to the NLRA’s framework. As Kathleen notes, Rerum Novarum and successive papal social encyclicals emphasize the fundamentally cooperative relationship between management and labor, not the conflict and balancing of interests that marks the approach of the NLRA. That cooperative vision of labor relations—and not the NLRB’s cramped definition of what constitutes a religious institution—should serve as our guide for resolving this debate.